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Thursday, November 30, 2017

Selected reports posted in Employment Law News by WK Workday


Selected reports posted in Employment Law News by WK Workday
Source: Wolters Kulwer

Selected reports posted by WK Workday November  29, 2017
Click on text highlighted in color to access the full report





Appointing authority imposed a more severe penalty than the one recommended by the hearing officer



Appointing authority imposed a more severe penalty than the one recommended by the hearing officer
OATH Index No. 2230/17

The employer alleged that the employee was absent without leave [AWOL] for two weeks, that the employee falsely attributed her absences to pre-approved leave granted under the Family Medical Leave Act ("FMLA"), that the individual  failed to supervise her subordinates and that the employee failed to attend a mandatory training class.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of the AWOL and falsification of leave charges in part, explaining that the employer had failed to show that the employee was AWOL or that she falsely attributed her absences to FMLA for the first week of her absence. The ALJ found that the record supported the employee's claim that her supervisor had approved her request for leave without pay and that that leave was supported by a valid doctor's note.

In contrast, Judge Zorgniotti found that the employer did prove the charges with respect to the second week of the employee's absence. In addition, Judge Zogniotti sustained the charges filed against the employee alleging that she failed to supervise her subordinates and that she had failed to attend the mandatory training class.

The ALJ recommended that the employee be given a penalty of a 60-day suspension without pay. The appointing authority, however, sustained all charges filed against the individual and terminated the individual's employment.

In Gradel v Sullivan Co. Public Works, 257 A.D.2d 972, the Appellate Division sustained the appointing authority's imposing a greater penalty that the one recommended by the hearing officer, explaining that there was ample evidence in the record to support the appointing authority's decision.

As a general rule, courts are reluctant to substitute their judgment for that of the employer on the fairness of penalties, but will do so if the penalty appears grossly unfair -- the standard established in Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2230.pdf

_____________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/7401.html
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Wednesday, November 29, 2017

Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees


Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees
Monroe County Deputy Sheriffs' Assn., Inc. (Monroe County), 2017 NY Slip Op 08107, Appellate Division, Fourth Department

Supreme Court granted the Monroe County Deputy Sheriffs' Association's petition to confirm the award rendered in a labor arbitration directing Monroe County and the Monroe County Sheriff to provide qualified retirees and future retirees from the Monroe County Sheriff's Office with the same health insurance coverage - here coverage for the dependent child of a retiree until the child reaches the age of 26 years - that was being  provided to active employees.

The Appellate Division cited the federal Affordable Care Act, 42 USC §300gg-14 [a] and the collective bargaining agreement (CBA) between the parties as the authority for the arbitrator's award.

The court rejected the County's and the Sheriff's claim that the arbitrator exceeded his power in fashioning the award, explaining that "It is well settled that an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1) (iii) where the arbitrator's award " clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, said the Appellate Division, "To exclude a substantive issue from arbitration . . . generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach." The court then concluded that in this instance "the arbitrator did not exceed a specifically enumerated limitation on his power."

The Appellate Division also rejected the County's and Sheriff's contention that the arbitrator's award was irrational.

Citing Matter of Lackawanna City School District [Lackawanna Teachers Federation], 237 AD2d 945, the court decided that the arbitrator's interpretation of the CBA was not completely irrational and thus his ruling was beyond its power to review because "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

The decision is posted on the Internet at:

Tuesday, November 28, 2017

Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints


Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints
2017 NY Slip Op 07985, Appellate Division, Second Department

A New York City Administrative Law Judge [ALJ] commenced this action against the City of New York, her agency and five employees in her agency, alleging causes of action to recover damages for (1) violation of her free speech and petition rights under the New York State Constitution, Article I, §§8 and 9; (2) employment discrimination on the basis of sex and age in violation of the New York City Human Rights Law [NYCHRL] and (3) unlawful retaliation in violation of the NYCHRL for having made complaints of sexual harassment and age discrimination.

The complaint alleged that ALJ and other administrative law judges spoke out internally within the agency and externally to public officials and the press about an alleged agency practice of improperly pressuring administrative law judges to issue recommended decisions in favor of the agency and to impose maximum fines. 

ALJ contended that she was demoted and subjected to other retaliation due to this speech and to her complaints concerning alleged sexual harassment. ALJ's complaint also alleged the existence of a pattern of age discrimination within the agency.

Supreme Court granted the agency's CPLR 3211 motion to dismiss ALJ's complaint, denied her motion to amend her complaint. ALJ appealed these Supreme Court rulings to the Appellate Division.

Among the procedural issues considered by the Appellate Division were the following:

Motion to Dismiss: The Appellate Division said that a complaint "is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory."* The court explained that "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff [here ALJ] will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" noting that ALJ's allegations were "sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL."  In the words of the Appellate Division, Supreme Court "erred in determining that the cause of action must be dismissed because the behavior [alleged] constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss."

Claims of Age Discrimination: The Appellate Division ruled that ALJ's  allegations of disparate treatment of older employees, including herself, and that her demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHR, explaining that "The fact that the individual defendants were approximately the same age as ALJ does not render the cause of action insufficient."

Complaints alleging Sexual Harassment and Age Discrimination: The Appellate Division held that Supreme Court  erred in granting dismissal of the cause of action alleging based on ALJ's complaints of sexual harassment.  ALJ's complaint, however, failed to allege that she had complained about the alleged acts of age discrimination and thus Supreme Court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination.

Notice of Claim: The Appellate Division also held that Supreme Court had properly granted dismissal of the cause of action alleging violations of the State Constitution because ALJ failed to serve a notice of claim. The court explained that ALJ's action "does not fall within the public interest exception to the notice of claim requirement, since the complaint seeks to vindicate the private rights of [ALJ], and the disposition of the claim will not directly affect or vindicate the rights of others."**

Leave to Amend the Complaint: Here the Appellate Division found that Supreme Court improvidently exercised its discretion in denying ALJ's cross motion for leave to amend her complaint to assert an alternative First Amendment retaliation cause of action pursuant to 42 USC §1983. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit said the court.

Unlawful Retaliation: With respect to claims of unlawful retaliation under the NYCHRL, in the First Amendment context, a plaintiff "need only show that the retaliatory conduct in question would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." The Appellate Division found that the allegations that ALJ was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently pleaded that the subject speech was a substantial or motivating factor for an adverse employment action. As with unlawful retaliation claims under the NYCHRL, in the First Amendment context, a plaintiff "need only show that the retaliatory conduct in question would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights" and Supreme Court should have granted ALJ leave to amend the complaint.

* In addition the Appellate Division noted that Supreme Court may consider affidavits submitted by a plaintiff to remedy any defects in the complaint. 

** In contrast, the Appellate Division noted that a notice of claim was not required with respect to ALJ's perfecting her First Amendment retaliation cause of action pursuant to 42 USC §1983.

The decision is posted on the Internet at:

Monday, November 27, 2017

Amendment to Civil Service Law §167(8) does not violate the compensation clause for certain judges set out in Article VI, §25[a] of the State Constitution


Amendment to Civil Service Law §167(8) does not violate the compensation clause for certain judges set out in Article VI, §25[a] of the State Constitution
Bransten v State of New York, 2017 NY Slip Op 08168, Court of Appeals

In 2011 the State-employee unions, in the course of collective bargaining, agreed to a percentage reduction to the State's employer contributions for health insurance to avoid layoff, salary freezes and unpaid furloughs. This negotiated agreement was reflected in an amendment to §167.8 of the Civil Service Law.*

The question addressed in Bransten: Does Civil Service Law §167(8), as amended, authorize a reduction of the State's contribution to health insurance benefits for State employees, including members of the State judiciary? With respect to judges the court concluded that the State's contribution for health insurance premiums is not "judicial compensation" protected from diminution and salary deductions for health insurance contributions does not singling out the judiciary for disadvantageous treatment.

The court concluded that "[a] contribution to health care premiums, which varies from year to year, is not compensation  and although the reduction of the employer's health insurance contributions "indirectly diminishes judicial compensation," the Legislature has not singled out judges for disadvantageous treatment. Where, as here, the reduction applies to all State employees, there is not even a suggestion that judges are being targeted. 

These reductions in the State's "employer contributions for health insurance" were also applied to retired judges and other retired employees of the State as the employer notwithstanding the fact that such retirees were not in danger of suffering " layoff, salary freezes and unpaid furloughs" nor were they members of a collective bargaining unit within the meaning of the Taylor Law [Article 14 of the Civil Service Law Article].

The decision, however, apparently directly addresses only the impact of the change on active employees. The issue of whether the reduction was lawfully applied to pre-amendment retirees was not specifically  addressed by the Court of Appeals.

Significantly, Judge Dillon, in a concurring opinion, noted the court had, "[b]y concluding that a direct diminution of judicial salary has not been mathematically established, in dollar terms," did not reach the secondary question of whether the State's reduced percentage contributions toward health care premiums for the judiciary and its retirees was accomplished in a discriminatory or non-discriminatory manner as compared with other employees of the State" and "[a]ccordingly, the judgment should be reversed without prejudice to plaintiffs recommencing a new action, if they be so advised." 

* §167.8 of the Civil Service Law was amended by §2 of Chapter 491 of the Laws of 2011 to read as follows [old text stuck out, new text underlined]:

8. Notwithstanding any inconsistent provision of law, where and to the extent that an agreement between the state and an employee organization entered into pursuant to article fourteen of this chapter so provides, the state cost of premium or subscription charges for eligible employees covered by such agreement may be [increased] modified pursuant to the terms of such agreement [and for a duration provided by such agreement and pursuant to rules and regulations as may be established by the president. Such increase in state cost shall only apply during the period of eligibility provided by such agreement and shall not be applied during retirement]. The president, with the approval of the director of the budget, may extend the modified state cost of premium or subscription charges for employees or retirees not subject to an agreement referenced above and shall promulgate the necessary rules or regulations to implement this provision.

The decision is posted on the Internet at:


Saturday, November 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

Office of General Services (OGS) and the State Education Department (SED): Preferred Source Contracting (Follow-Up) (2017-F-15)
New York state’s Preferred Source Program grants “preferred source” status to Corcraft and not-for-profit organizations that serve and employ the blind, severely disabled, and veterans. OGS is the state’s central procurement agency. The New York State Industries for the Disabled (NYSID) is the agency designated to facilitate orders among agencies for the severely disabled and veterans’ workshops. SED is responsible for the monitoring and oversight of NYSID and for ensuring NYSID is in compliance with all applicable regulations. An audit released in June 2016 found that SED provided only minimal oversight of NYSID offering little assurance NYSID was awarding contracts in a manner that best meets the purpose of the program as well as meeting program requirements. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit.
For the period of February 2014 through May 2015, auditors found the claims for payment LIAAC submitted contained overbillings of $15,777. The claims were returned to DOH. Auditors also identified $95,918 in refunds and reimbursements from other entities for medical and dental expenses paid to LIAAC’s related entity and group medical benefits provider, the Long Island Network of Community Services, which should have been remitted to DOH.
An initial audit report issued in March 2016 found the owner of a Medicaid eye care provider inappropriately enrolled as Medicaid recipients and inappropriately billed Medicaid for vision services. In a follow up, auditors found that of the initial report’s eight audit recommendations, two were implemented, five were partially implemented, and one has not yet been implemented. In March of 2016, the Office of the Medicaid Inspector General (OMIG) commenced an investigation of the provider, the Provider’s billing company, and the recipients identified in the original audit. At the time of our follow-up review, the investigation was ongoing and OMIG officials stated that recoveries of Medicaid overpayments and corrective actions would occur, if warranted, when the investigation was complete.
An initial audit released in March 2016 found that Medicaid paid plans $21.4 million in capitation payments for recipients who were subsequently disenrolled. By the end of the audit fieldwork, some capitation payments had been recouped and about $12 million still needed to be recovered from the plans. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit report. However, further actions are still needed as only $3.4 million of the $12 million in improper capitation payments had been recovered.
Auditors determined the College of Health was overpaid $298,224 because school officials incorrectly certified some students as eligible for State financial aid awards. Incorrect certifications include eleven students who received awards but did not demonstrate academic preparedness and eight students who did not meet the requirements for full-time status.
While TBTA makes efforts to collect unpaid tolls, we found $11.3 million in tolls that were either written off ($5.4 million in OTG tolls) or uncollected ($2.3 in OTG tolls and $3.6 in Deferred Tolls).In addition, TBTA had more than $72 million in unpaid fees for the Henry Hudson Bridge from 2013 through 2015. TBTA officials advised that they consider the fees a deterrent, but have waived as much as 90 percent of fees due upon receipt of the payment of the unpaid tolls. TBTA also did not fully utilize the new DMV registration suspension program, as evidenced by submitting only a limited number of registrations for suspension each week after the initial introductory period.
Lifeline is a Queens, New York-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5. For the three fiscal years ended June 30, 2015, auditors identified $304,192 in reported costs that did not comply with state guidelines, including $80,506 in bonuses.

HeartShare is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5.  For the three fiscal years ended June 30, 2014, auditors identified $1,529,789 in reported costs that did not comply with state requirements, including: $891,018 in non-program expenses for compensation paid to 71 individuals who did not work for HeartShare’s SED preschool cost-based programs; $204,855 in ineligible employee bonuses that did not comply with SED’s reimbursement requirements; and $201,237 in over-allocated expenses, including $60,338 in personal service costs and $140,899 in other than personal service costs.

Wednesday, November 22, 2017

Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website


Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website 
Source: The Empire Center* 

Click on text highlighted in color  to access the text of the agreements. 

Local government and school district collective bargaining agreements were added to SeeThroughNY, the Empire Center’s transparency website on November 21, 2017. The newly added collective bargaining agreements include 120 public school teacher contracts, 28 firefighter contracts, and 62 police contracts.

In addition, 164 school superintendent employment contracts have been updated on SeeThroughNY.

Broken down by region, the contracts are distributed as follows:

43 in the Capital Region, including North Colonie’s superintendent contract and Saratoga Springsfire contract;

26 in Central New York, including teacher contracts in Onondaga County and fire contracts in Oswego County;

33 in the Finger Lakes, including fire contracts in Monroe County and teacher contracts in Genesee County;

63 on Long Island, including 11 teacher contracts in Nassau County and 12 in Suffolk County;

71 in the Mid-Hudson region, including police contracts in Westchester County;

30 in the Mohawk Valley, including three superintendent contracts in Oneida County and four in Herkimer County;

28 in the North Country, including superintendent and teacher contracts for Clinton County;

34 in the Southern Tier, including police contracts for Tompkins County and fire contracts for Broome County; and

46 in Western New York, including the Buffalo city schools’ first contract with its teachers union in 12 years.

More than 6,700 current and expired public-sector union and school superintendent employment contracts are now searchable on SeeThroughNY’s contract database, the most comprehensive in the state.

Complete copies of hundreds of local government and school district labor union contracts were added today to SeeThroughNY, the Empire Center’s transparency website.

* The Empire Center, based in Albany, New York, self-describes itself as an independent, non-partisan, not-for-profit think tank dedicated to promoting policies to make New York a better place to live, work and do business.

Tuesday, November 21, 2017

Suing public officials and government entities for allegedly making defamatory statements concerning an individual


Suing public officials and government entities for allegedly making defamatory statements concerning an individual
Brummel v Board of Trustees of the Village of E. Hills, et al., N.Y., 2017 NY Slip Op 07971, Appellate Division, Second Department

Richard A. Brummel, alleging that the village's mayor made defamatory statements about him to another person and that person reported those statements in an article published in a local newspaper, sue the mayor, the village board, the newspaper and the editor of the newspaper.

The newspaper and its publisher moved to dismiss Brummel's complaint for failure to state a cause of action. The mayor and the defendant village board separately moved to [1] dismiss the complaint against the major and [2] for failure to state a cause of action and [3] to require Brummel seek leave of court to commence any future actions against it.

Supreme Court granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants to dismiss the complaint but did not address that branch of the Village's motion that would require Brummel to seek leave of court to commence any future actions against them. Brummel appealed and the mayor and the village cross-appealed.

The Appellate Division ruled that Supreme Court properly granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants seeking to dismiss the complaint insofar as asserted against each of them for failure to state a cause of action. The court, citing Gross v New York Times, 82 NY2d 146, explained that as "falsity is a necessary element of a defamation cause of action and only facts 'are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'"

In this regard, distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean." In so doing, the Appellate Division said that courts must consider:

1. whether the specific language has a precise meaning that is readily understood;

2. whether the statement is capable of being proven true or false;

3. whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact; and

4. [quoting from Gross] "whether a reasonable [reader] could have concluded that the [articles were] conveying facts about the plaintiff."

Accepting the allegations in the complaint as true and affording Brummel the benefit of every favorable inference, the Appellate Division concluded that Brummel "did not state a cause of action to recover damages for defamation as some of the statements alleged to have been made 'do not have a precise meaning' while others are hyperbolic and incapable of being proven true or false."

Considering the context of the alleged statements, the court opined that "a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about [Brummel]."

The decision is posted on the Internet at:

Monday, November 20, 2017

NYS Governor Cuomo announces administration appointments


NYS Governor Cuomo announces administration appointments
Source: Officer of the Governor

On November 20, 2017, New York Governor Andrew M. Cuomo announced the following  appointments to his administration.

Cathy Calhoun has been appointed Director of State Operations. Previously, Ms. Calhoun served as Acting Commissioner of the Department of Transportation, leading the Governor's landmark $100 billion, five-year infrastructure plan to help reduce congestion and air pollution, and improve the safety of motorists on New York roads. Ms. Calhoun previously served as Chief of Staff at the Department of Transportation. Ms. Calhoun previously served as Deputy Comptroller for Intergovernmental Affairs for Comptroller Thomas DiNapoli and as a Central New York representative for former U.S. Senator Hillary Clinton. Ms. Calhoun also previously worked for former Governor David Paterson in intergovernmental affairs.
 
Linda Lacewell, Esq. has been appointed Chief of Staff and Counselor to the Governor. In that senior role, Ms. Lacewell will oversee Executive Chamber operations, as well as ethics and law enforcement matters. Ms. Lacewell most recently served as executive director of the Cancer Breakthroughs 2020 at the Chan Soon-Shiong NantHealth Foundation in Santa Monica, California. Prior to that, Ms. Lacewell served as chief risk officer and counselor to Governor Cuomo where she built and implemented the first statewide system for ethics, risk and compliance in agencies and authorities. Ms. Lacewell was formerly special counsel to the Governor, as well as the architect of OpenNY, a state-of-the-art open data initiative. She also served as special counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. Prior to that, Ms. Lacewell spent nine years as an assistant U.S. attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General's Award for Exceptional Service. Ms. Lacewell earned her B.A. from New College of the University of South Florida and her J.D. with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She formerly served as an adjunct professor at New York University School of Law, teaching ethics in government, we as well as an adjunct professor of law at Fordham University School of Law, teaching international criminal law.
 
Letizia Tagliafierro, Esq. has been appointed Deputy Secretary for Intergovernmental Affairs and Special Counsel to the Governor. Ms. Tagliafierro presently serves as Special Counsel for Public Safety. Prior to that, Ms. Tagliafierro served as Deputy Commissioner of the Criminal Investigations Division at the New York State Department of Taxation and Finance and as the Executive Director and Director of Investigations and Enforcement of the New York State Joint Commission on Public Ethics. Ms. Tagliafierro also served as Director of Intergovernmental Affairs in the Executive Chamber, Special Counsel for the New York State Attorney General, and Assistant District Attorney in Erie County. Ms. Tagliafierro holds a J.D. from Albany Law School and B.A. from SUNY University at Albany.
 
Paul Karas has been appointed Commissioner of the Department of Transportation to continue the Governor's $100 billion investment plan to modernize aging infrastructure across the state. Before joining the Cuomo Administration, Mr. Karas served for four years as Vice President and Manager of RS&H, Inc., a transportation and buildings infrastructure consulting firm. Prior to that, he served as President and Founder of Karas Associates Co., an infrastructure development consultancy. Mr. Karas has extensive experience working at the Port Authority of New York/New Jersey, where he served as director of the $3.2 billion John F. Kennedy International Airport Redevelopment Program, and he previously served as the Commissioner of Public Works for the City of Chicago for three years. In 2004, Mr. Karas was appointed by the Illinois legislature to the Northeastern Illinois Regional Transportation Task Force, and in 1997, he was appointed by the U.S. House of Representatives to the Blue-Ribbon Advisory Committee for developing solutions to funding and operating concerns regarding Amtrak. Mr. Karas received his Bachelor of Arts in Civil Engineering from the University of Notre Dame, and a Master's degree from the University of Michigan.
 
Richard White, Esq. has been appointed Deputy Secretary for Public Safety. Previously, Mr. White led the Tenant Protection Unit at New York State Homes and Community Renewal, a unique statewide unit which proactively enforces landlord obligations to tenants and imposes strict penalties for failure to comply with HCR orders and New York's rent laws. Prior to working for Governor Cuomo, Richard R. White served as Of Counsel to the commercial real estate firm of Cyruli Shanks LLP, with a focus in government affairs, compliance, and complex criminal litigation. Before Cyruli Shanks, Mr. White served at the highest levels of governmental agencies and authorities in New York City; serving as Deputy Commissioner for Investigation, Trials & Litigation at the New York City Department of Correction and Deputy Commissioner of Operations at the New York City Department of Probation. Previously, for over a decade, Mr. White served as a Senior Trial Attorney for Robert M. Morgenthau in the Manhattan District Attorney's Office. Mr. White received a Bachelor of Arts degree in Economics from Franklin & Marshall College, his law degree from Delaware Law School, was an Executive Education Graduate at Harvard University's John F. Kennedy School of Government and was a recipient of Harvard Law School's Program on Negotiation for Senior Executives. Commissioner White is admitted to practice law before the courts of New York, New Jersey, the District of Columbia, the United States District Courts of the Southern and Eastern Districts of New York, the United States District Court for the District of New Jersey and before the United States Supreme Court. 

Peter Ajemian has been appointed Deputy Communications Director for Transportation. Prior to joining the Governor's Office, he served as Chief of Staff to State Senator Brad Hoylman. Previously, he was the primary spokesman and Senior Adviser for Communications on Attorney General Eric Schneiderman's successful re-election campaign. He has also served as Senior Vice President at the consulting firm Marathon Strategies, where he coordinated communications and research strategy on four successful state ballot initiatives legalizing same-sex marriage in Washington, Maine, Maryland and Minnesota. He is a graduate of Boston University and The New School.

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual


Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual
Decisions of the Commissioner of Education, Decision No. 17,245

A parent filed an application with the Commissioner of Education seeking the removal of the superintendent [Superintendent] of the school district.

The Commissioner ruled that the parent's application must be denied on procedural grounds, whereupon the Superintendent ask the Commissioner to issue a Certificate of Good Faith.

Such a certificate is issued by the Commissioner for the sole purpose of authorizing a school board to indemnify a school district officer, and certain other individuals, for legal fees and expenses incurred in defending a proceeding arising out of the exercise of the individual's power or performance of his or her official duties.*

The Commissioner said that it is appropriate to issue such certification unless it is established on the record that the requesting school district officer acted in bad faith. Here, however, the application filed with the Commissioner has been denied on procedural grounds. Nevertheless, the Commissioner said that as there has been no finding that the Superintendent acted in bad faith with respect to the allegations in the Parent's application, "to the extent such a certificate is necessary, I hereby certify that [the superintendent] is entitled to receive the requested certificate."

Similarly, §17 of the Public Officers Law provides for the defense and indemnification of officers and employees of the State as the employer in such situations while §18 of the Public Officers authorizes a political subdivision of the State, by the adoption of a of local law, by-law, resolution, rule or regulation to provide for the defense and indemnification of its officers and employees.

* §3811.1 of the Education Law provides that the "costs, expenses and damages" incurred by a trustees or board of education, school district officers, and other individuals designed in the statute in defending any action brought against them "shall be a district charge and shall be levied by tax upon the district." Paragraph (c) of §3811.1, in pertinent part, provides that "it shall be certified by the court or by the commissioner of education, as the case may be, that [the individual] appeared to have acted in good faith with respect to the exercise of his [or her] powers or the performance of his [or her] duties under this chapter.

The full text of the decision is posted on the Internet at:

Friday, November 17, 2017

Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation


Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation
Thompson v District Council 37, 2017 NY Slip Op 07964, Appellate Division, First Department

Bobbie Thompson sued District Council 37 [DC-37], her collective bargaining organization after to it informed her that it would not demand arbitration challenging the  termination of her employment. However, because Thompson failed to commence her CPLR Article 78 action against her former employer, the New York City Department of Education (DOE), within the four-month limitations period governing claims filed under Article 78 or the one-year limitations period applicable to other claims against  provided for in Education Law §3813(2-b).

As §3813(2-b) states that "Except as provided in subdivision two of this section and, notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no action or special proceeding shall be commenced against any entity specified in subdivision one of this section more than one year after the cause of action arose," the Appellate Division ruled that Thompson's causes of actions were time-barred.

Turning to Thompson's claims against DC-37 for an alleged breach of the unions duty of fair representation, the Appellate Division ruled that her actions was "likewise untimely under the applicable four-month limitations period." The court explained that Thompson's  discrimination claims against DC-37 relating to events alleged to have occurred prior to September 10, 2012are untimely under the governing three-year limitations periods.

Addressing Thompson's "facially timely claim that the union discriminated against her by refusing to arbitrate her termination," the court ruled that Thompson "fails to state a cause of action," noting that Thompson failed to allege any facts which could support an inference of bias.

Thompson's final contentions included constitutional claims and claims under Civil Service Law §75. The court said that those claims were "unpreserved and without merit."

As to Thompson's claims with respect to §75, in Antinore v Stat, 40 NY2d 6, the Court of Appeals ruled that a public employee's collective bargaining agent could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced..

Thus if DC-37 was authorized by law to negotiate an alternate disciplinary procedure with Thompson's employer providing equivalent administrative due process, in this instance apparently §75 of the Civil Service Law, on behalf of employees in the relevant negotiating unit, an employee in that negotiating unit would no longer be entitled to claim the "notice and hearing" mandated by §75 of the Civil Service Law with respect to disciplinary action taken against the individual by his or her employer.

The decision is posted on the Internet at:

Thursday, November 16, 2017

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual


Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual
Decisions of the Commissioner of Education, Decision No. 17,245

A parent filed an application with the Commissioner of Education seeking the removal of the superintendent [Superintendent] of the school district.

The Commissioner ruled that the parent's application must be denied on procedural grounds, whereupon the Superintendent ask the Commissioner to issue a Certificate of Good Faith.

Such a certificate is issued by the Commissioner for the sole purpose of authorizing a school board to indemnify a school district officer, and certain other individuals, for legal fees and expenses incurred in defending a proceeding arising out of the exercise of the individual's power or performance of his or her official duties.*

The Commissioner said that it is appropriate to issue such certification unless it is established on the record that the requesting school district officer acted in bad faith. Here, however, the application filed with the Commissioner has been denied on procedural grounds. Nevertheless, the Commissioner said that as there has been no finding that the Superintendent acted in bad faith with respect to the allegations in the Parent's application, "to the extent such a certificate is necessary, I hereby certify that [the superintendent] is entitled to receive the requested certificate."

Similarly, §17 of the Public Officers Law provides for the defense and indemnification of officers and employees of the State as the employer in such situations while §18 of the Public Officers authorizes a political subdivision of the State, by the adoption of a of local law, by-law, resolution, rule or regulation to provide for the defense and indemnification of its officers and employees.

* §3811.1 of the Education Law provides that the "costs, expenses and damages" incurred by a trustees or board of education, school district officers, and other individuals designed in the statute in defending any action brought against them "shall be a district charge and shall be levied by tax upon the district." Paragraph (c) of §3811.1, in pertinent part, provides that "it shall be certified by the court or by the commissioner of education, as the case may be, that [the individual] appeared to have acted in good faith with respect to the exercise of his [or her] powers or the performance of his [or her] duties under this chapter.

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